Littlefield v. Newport Water Co.

• Decision Date: 23 December 1912
• Citation: 110 Me. 129,85 A. 482
• Parties: LITTLEFIELD v. NEWPORT WATER CO.
• Court: Maine Supreme Court

85 A. 482

110 Me. 129

LITTLEFIELD

v. NEWPORT WATER CO.

Supreme Judicial Court of Maine.

Dec. 23, 1912.

On Motion from Supreme Judicial Court, Penobscot County, at Law.

Action by Ulysses S. Llttlefield against the Newport Water Company. There was a verdict for plaintiff, and defendant moved for a new trial. Sustained.

Argued before SAVAGE, KING, BIRD, HALEY, and HANSON, JJ.

F. W. Halliday, of Newport, for plaintiff.

W. H. Mitchell, of Newport, and John E. Nelson, of Waterville, for defendant.

SAVAGE, J. Case for negligence. The plaintiff obtained a verdict, and the case conies here on the defendant's motion for a new trial. In September, 1907, the Newport Water Company laid a two-inch water main up Park avenue in Newport to a point in front of the plaintiff's house. The main was in the southerly side of the street. The house was on the northerly side of the street and 50 feet from the main. The main was about eight inches lower than the bottom of plaintiff's cellar. At this point in front of the plaintiff's house, the pipe was reduced to a one-inch pipe by a reducing nipple a few inches long, a shut-off was put in, and a perpendicular one-inch pipe with elbow was connected by a nipple to the shut-off and came to the surface of the ground. Then it was extended on the surface to a trotting park as a service pipe. At about the same time a service pipe was laid from the main across the street and into the plaintiff's cellar. It started within a few inches of the shut-off just referred to. This service pipe also had a shut-off on the plaintiff's premises from 20 to 25 feet from the house. It is undisputed that the ground sloped away from the plaintiff's house to the north and the west; it is disputed whether it sloped to or from the house on the east; it is undisputed that on the south or road side of the house the ground sloped slightly from the traveled part of the road to the house from 2 to 4 inches in 50 feet.

The plaintiff complains that each winter since the pipes were laid large quantities of water have either flowed or percolated into his cellar, doing him much damage. He alleges that the water came from a break in the defendant's pipe in the ground at or near the connection between the two-inch main and the trotting park service pipe. The negligence alleged and relied upon in argument is that the defendant laid the trotting park horizontal service pipe so closely to the surface of the ground at the point where it was connected with the perpendicular pipe that the heaving of the frozen ground in winter wrenched the pipe in the ground from its connection with the main, thus allowing the water to escape from the main. Counsel in his brief states the claim in these words: "As soon as the frost came the pipe above the ground was raised, and, acting on the connection under the ground, pulled it away from the main, causing a leak." It is not claimed that water froze in the pipe and thus cracked it.

In February, 1911, the fourth winter, the pipe at this point was uncovered, and it was found to be broken or cracked. The parties agree substantially as to where the break or crack was They disagree as to size of the pipe in which it was, and as to the size of the leak. But these latter questions are of no importance at present. The leak was between the main pipe and the trotting park service pipe shut-off. And as it is not disputed that the water had been shut off from that service pipe, and that there was no water in it that could freeze, the allegation in the writ that the perpendicular pipe had been left uncased and unprotected from the frost is of no consequence. The trouble was not in the perpendicular pipe. A few days previous to the discovery of the leak already referred to, the plaintiff uncovered a portion of his own service pipe on his own ground, and at the point where the shut-off was connected he found, he says, slush and water in large quantities. It is testified to for the defendant, and not denied by the plaintiff, that this service pipe also was cracked at...